# [1975] 1 S.C.R. 504

- **Citation:** [1975] 1 S.C.R. 504
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Case number:** SPECIAL REFERENCE NO. 1 OF 1974
- **Bench:** A. N. Ray, P'. Jaganmohan Reddy, D. G. Palekar, H. R. A Khanna; K. K. Mathew, M. H. Beg, Y. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1975-1-s-c-r-504-6349
- **Pages:** 20

## Headnote

Constitution of India, 1950; Article 54--An electoral college consisting of
~~·~
B
Constitution of India? Article 71 (4)--Disaolution of a State Legislative
Assembly-Vacancy in ~le electoral college, if occurs on such dissolution.
Constitution of India, 1950, Articles 54, 55 and 62-Election ,to the office
of the Presii:knt-Completion of election before the expiration of the term in
case of vacancy caused by the expiry of the term-Whether nzandatory,
Presidential and Vice-Presidential Elections Act, 1952, Section 7 read lVith
J{'Ction 4-Completion of the election before the expiration of the termWhethtr contemplated.
Constitution of Jndia. 1950, Article 56(l)(c)
''succesSJ:ir'~. n1euning a/-
President, whether can continue in office '1.ffer the expiration of his ter1n.
Constitution of India, 1950, Article 143 ( 1 )-Statement of facts set out in
ord~r of Reference-Supreme Court,. whether can go behind the recital~.
The Gujarat State Legislative Assembly having been dissolved on the 15th ·
day of March, 1974; a general election for constituting a new Legislative Assem ..
bly can be held only after the Assembly constituencies have been delimited
afresh on the basis of the 1971 census under" article 170 of the Constitution
of Jndia and the .provisions of the Delimitation Act, 1972. In as much as it
will be impossible to complete the general election to the Legislative Assembly
for the State of Gujarat before the expiration of the term of office of the
President of India i.e. on the 14th day of August, 1974, in exercise of the
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powers conferred, upon him by clause ( 1) of article 143 of the Constitution
E
of India, the President of India referred the following question to the Supreme
Court of India for consideration and report its opinion thereon : ·
(I) Whether on a true and correct. interpretation of articles 54. 55,
56, 62 and 71 of the Constitution of India the electoral coJlege
mentioned in article 54 is to consist only of the elected members
or such of the Legislative Assemblie~ of the States as are
in
existence at or before
the expiration of the term of office of
. President under article 56(1) of Constitution of India.
F
(2) 'Whether on a true and correct interpretation of the provisions of
article 71(4) of the Constitution of India, when the
Legislative
AssembJy or Assemblies of any State or States. is or are disS"Olved
it will amount to a vacancy or vacancies having occurred in the
electoral college within the meaning of the said article.
(~) '\Vhether in vjew of the provisions cOntained in, inter alia. articles
54, 62 (I) and 71 ( 4) of t)le Constitution of India election of the
G
(4)
(5)
office of President must be held before the expiration of the term
of the outgoing President notwithstanding the fact that at the time
of such election the
Legislative
Assembly or Assemblies of any
State or States .is or are dissolved.
Whether the dissolution Of the Legislative Assembly or Assemblies
of any State or States precludes the hoiding of election to the office
of President.
Where the Legislative Assembly or Assemblies of any State or States
is or are dissolved before the expi'ration of the term of office of
the · outgoing President under articl~ 5 6 ( 1) of the Constitution of
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India, how and when is the election to fill the vacancy in the
office of President to be held and completed on a correct interpretation of the relevant provisions of the Constitution of India to
make the Constitution of India workable regarding the office of
President.
( 6) Whether in the event of the election to the office of President not
beirig completed before the expiration of the term of office
of
President under article 62(1) of the Constitution, the President can
notwithstanding the expiration of 'the term, continue to hold office
under clause (c) of the proviso to article 56(1) of the Constitu·
tion of India.
HELD that : ( 1) Only such persons who are elected n1embers of both
I-louses of' Parliament

## Text

_Characters 0–39,996 of 73,661. This is a partial read: ask again with offset=39996 for what follows._

504
SPECIAL REFERENCE NO. 1 OF 1974
Jun~ 5, 1974
[A. N. RAY, C.J., P'. JAGANMOHAN REDDY, D. G. PALEKAR, H. R.
A
KHANNA; K. K. MATHEW, M. H. BEG AND Y. V. CHANDRACHUD, JJ.]
Constitution of India, 1950; Article 54--An electoral college consisting of
~~·~
B
Constitution of India? Article 71 (4)--Disaolution of a State Legislative
Assembly-Vacancy in ~le electoral college, if occurs on such dissolution.
Constitution of India, 1950, Articles 54, 55 and 62-Election ,to the office
of the Presii:knt-Completion of election before the expiration of the term in
case of vacancy caused by the expiry of the term-Whether nzandatory,
Presidential and Vice-Presidential Elections Act, 1952, Section 7 read lVith
J{'Ction 4-Completion of the election before the expiration of the termWhethtr contemplated.
Constitution of Jndia. 1950, Article 56(l)(c)
''succesSJ:ir'~. n1euning a/-
President, whether can continue in office '1.ffer the expiration of his ter1n.
Constitution of India, 1950, Article 143 ( 1 )-Statement of facts set out in
ord~r of Reference-Supreme Court,. whether can go behind the recital~.
The Gujarat State Legislative Assembly having been dissolved on the 15th ·
day of March, 1974; a general election for constituting a new Legislative Assem ..
bly can be held only after the Assembly constituencies have been delimited
afresh on the basis of the 1971 census under" article 170 of the Constitution
of Jndia and the .provisions of the Delimitation Act, 1972. In as much as it
will be impossible to complete the general election to the Legislative Assembly
for the State of Gujarat before the expiration of the term of office of the
President of India i.e. on the 14th day of August, 1974, in exercise of the
c
D
powers conferred, upon him by clause ( 1) of article 143 of the Constitution
E
of India, the President of India referred the following question to the Supreme
Court of India for consideration and report its opinion thereon : ·
(I) Whether on a true and correct. interpretation of articles 54. 55,
56, 62 and 71 of the Constitution of India the electoral coJlege
mentioned in article 54 is to consist only of the elected members
or such of the Legislative Assemblie~ of the States as are
in
existence at or before
the expiration of the term of office of
. President under article 56(1) of Constitution of India.
F
(2) 'Whether on a true and correct interpretation of the provisions of
article 71(4) of the Constitution of India, when the
Legislative
AssembJy or Assemblies of any State or States. is or are disS"Olved
it will amount to a vacancy or vacancies having occurred in the
electoral college within the meaning of the said article.
(~) '\Vhether in vjew of the provisions cOntained in, inter alia. articles
54, 62 (I) and 71 ( 4) of t)le Constitution of India election of the
G
(4)
(5)
office of President must be held before the expiration of the term
of the outgoing President notwithstanding the fact that at the time
of such election the
Legislative
Assembly or Assemblies of any
State or States .is or are dissolved.
Whether the dissolution Of the Legislative Assembly or Assemblies
of any State or States precludes the hoiding of election to the office
of President.
Where the Legislative Assembly or Assemblies of any State or States
is or are dissolved before the expi'ration of the term of office of
the · outgoing President under articl~ 5 6 ( 1) of the Constitution of
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India, how and when is the election to fill the vacancy in the
office of President to be held and completed on a correct interpretation of the relevant provisions of the Constitution of India to
make the Constitution of India workable regarding the office of
President.
( 6) Whether in the event of the election to the office of President not
beirig completed before the expiration of the term of office
of
President under article 62(1) of the Constitution, the President can
notwithstanding the expiration of 'the term, continue to hold office
under clause (c) of the proviso to article 56(1) of the Constitu·
tion of India.
HELD that : ( 1) Only such persons who are elected n1embers of both
I-louses of' Parliament and the Legislative Assemblies of the States on the date
of the election to fill the vacancy caused by the expiration of the term of office
of the President will be wititled to cast their votes at the election. [523C]
1'he members of electoral
co1lege mentioned in Article 54 are not both
Houses of Parliament and the Legislative Assemblies of the States. l'he words
'an electoral college consisting of• in Article 54 mean that the electoral college
shall consist of persons mentioned therein. The wordS 'consisting of' refer to the
strength of the electoral college. The Houses of Parliament and the Legislative Assemblies are mentioned in Article 54 for the purpose of showing the
qualifications of members of electoral college. If the Legislative Assembly of
a State is dissolved, the members of the dissolved Assembly do not fulfil the
character of elected members o~ a State Assembly. The elected members of
a dissolved Legislative Assembly being no longer members of the electoral col~
Jege consisting of the elected members of both !louses of Parliament
and
elected members of the Legislative Assemblies of the States, are not entitled
to cast votes at the Presidential election.
[517 E-F; 518 F-HJ
(2) The vacancies caused by the _dissolution of an Assembly or Assemblies
will be covered by Article 71 ( 4).
Jn Narayan Bhaskar Khare v. The E'lectfon Commissio1: of India. [1957]
S .C.R. 1081, this Court found that not holding the election iI't
Himachal
Pradesh could not hold up the election of the President. Jt may be said on the
analogy of the observations in the Khare case that there are vacancies in the
electoral college by reason of the fact that there are no elected members of
the Legi'slative Assembly of a State where the Legislative Assembly is dissolved ..
Artide 71 (4) was really introduced after the Khare case t9 shut out any
challenge to the election on the ground that there was any vacancy among
members Of the electoral college. In view of the Constitutional declaration
or exposition
of Article
71 ( 4),
it
is
manif~st that the language is
of
wide amplitude,
viz.,
existence . of any
vacancy for
any reason
whatever among the members of the electoral college.
It will take in any
case where a person who as an elected me1nber of the Houses of Parliament or
the Legislative Assembly of a State became entitled to be a member of the electoral college but ceased to. be an elected member at the relevant date~ of' the
election and therefore became disentitled to cast vote at the election and. that
vacancy among· members of the electoral college was not filled up.
Questions as to. what would be the position if there is "mala fide dissolution'•
of a State Legislative Assembly or Assemblies or if there is, after the dissolution
of the Assembly or Assemblies a "ma1a fide refusal" to hold elections thereto
within reasonable time before the Presidential election and also the question as
to what would be the effect of the. dissolution of a substantial nu·mber of State
Legislative Assen1blies before the Presidential election left open?
[516 E;
520 C; E-H]
3.
4 and
5.
The election
to the
office of the President
must
be held
before the exptl:ration
of
the
term
of
the
President
notwithstanding
the
fact
that at the time of such
election the LegisJntive Assembly of a State 'is dissolved. The election to fill the vacancy in
the office of the President is to be held and completed having regard to Articles 62(1). 54.
55 and the Presidential
and Vice-Presidential
Elections
Act, 1952.
[523F]
5 ()6
SUPREME COURT REPORTS
[1975] l s.c.R.
The fixed terill ol office mentioned in Article 56(1) as well as the mandate
in Article 62(1) that the election to fill a vacancy caused by the expiration of
the term of office shall be completed before the expiration of the term reflects
the dominant constitutiona'l purpO'Se aD'd intent regarding the time when the
clection of the President is to be held.
Further, the provision in Article 62(2)
that an election to fill a vacancy in the office of the President by reason of his
death, resignation or remov~l or other~se be_ held as soon as possible after
and in no case later than six months from the date of the occurrence of the
vacancy sho"·s that the time to 'hold an election to fi.11 a "fa<:ancy is
also
n1andatOry in chapter. rs13 Bl
KfsOre ca,te followed.
The completion of election before the expiration of the term. in the case
of vacancy caused by the expiry of the term as well as filling the vacancy by
holding an election not later than six months from the date of the occurrence
of the vaCancy in the other case does not contain ay provision for extension
of time.
Provisions containeP, in Article 83 providing for extension of the
:i;eriod beyond the period of five years may be referred here
by
way
of
contrast.
[513 DJ
TI1e word "otherwise'' occurring in Article 62(2) of the Constitution does
not refer to a vacancy caused by the expiration of the term of office for the
obvious reason that the same is the subject matter of Article 62(1). The marginal note to Article 62 fully bears this out. Further, a President whose term
has expired can continue to hold the office only under Article 56(1) (c)
until his suc..:essor enters upon his office.
Article 56t 1) (c) is complementary
to Article 62(1). Vacancy under this Article does not enable the President to
continue in office.
[513 G; 514 BJ
Provisions of section 7 of the Presidential and Vice-Presidential Elections
Act, 1952, are to be considered along with section 4 of the Act.
This
Act indicates that the provisions contemplate the completion of the election
before the expirat!i,bn of the term. If the completion of the election before
the expiration of the term is not possible because 'of the death of the prospective
candidate, it is apparent that the ~lection has commenced before the expiration
of the term but completion before the expiration of the term is rendered impossible by an act b~yond the control of human agency.
The necessity for
completing the election before the expiration of the term is enjoined by the
Constitution in public and State interest to see that the governance of the country is no't: paralysed by non-compliance with the provision in Article 52 that
there shall be a President of India. The impossibility of the completion of
the election to fill the vacancy in the office of the term of office in case of
death of a candidate as may appear from section 7 of the 1952 Act does not
rob Article 62(1) of its mandatory character.
[514 D·E; 515 D·EJ
Article 55 which indicates the methods of calculating as to how many votes
an elected member of the electoral college can cast at the Presidential election.
has no concern with the competence of the election of the President because of the
dissolution of the Legislative ,Assembly of a State. [518 C-D]
A
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Article 62 is_ the constitutional. mary.date and other provisions like Article 54,
55 subserve Article 62. The Leg1slattve Assemblies of the States are not members of the electoral college.
None of the Articles 368, 54 55 can rob Article
62 of its constitutional content.
Article 62 stands by itself independent of any
Cl
other provision. [519 F]
Khare case discussed. Br<Mt v. Bratt (1826) 3 Adan1s 210 at p, 216 and
Raburton v. Loveland (1832) 2 D & Cl. 480 referred to.
(6) Article 56 (1) (c) applies to a case where a successor has not entered
his office and only in such circumstances can a President whose term has expired continue.
[523 E·FJ
•
.
The expression "successo_r'' !n Article 56 (1) (c) means a successor elected
H
before or even after the exp1ratton of the term stated Article 62(1)
The terth
-of ?ffic.e of the Preside~t is fixed.
The election to fill the vacancy c~used by the
~X~lfatlon of the term is to be completed before the expiration of the term. It
lS 1n that context that the outgoing President, notwithstanding tbe expiration of
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507
the term, continues to hold office under
Art.
56( 1)
until
his
succe~sor
enters
upon
office.
The
successor
can
only
enter
upon
his office after he takes the oath under Article 60. He can take oath only after
the election. It is possible that the successor cannot enter upon his office on the
day following the expiration of the term of office of the outgoing President for
unavoidable reasons.
That is why Articles 56 (1), 56(1) (c) and 62 (1) are
to be read together to give effect to the constitutional intent and content that the
election to fill the vacancy caused by the expiration of the term of the President is
to be completed before the expiration of the term.
[516 F-G]
Held aJso that: (l) This Court is bound by the recitals in the order of Rcfe-
"rence. Under Article 143 ( 1) this Court accepts the statement of fact set out
in the reference. The truth or otherwise of the facts cannot be .enquired or gone
into nor can this Court go into the question of bona {ides or otherwise of the
authority making the reference. This Court cannot go behind the recital. 1 hi9
Court cannot go into disputed qltestions of fact in its advisory jurisdiction under
Article 143 (1). [521 D-E]
Re. Kera/a Education Bill case, [1959] S.C.R. 995 followed.
Re Allocation of Lands and Buil1ing in a Chief Co111n1issio11er .. ., Province
[1943] F.C.R. 20 and Re Levy of Estate Duty, [1944] F.C.R. 317 referred.
(ii) The Legislative Assembly of the State of Gujarat has been dissolved.
Therefore, any election which has to be held to the Legislative Assembly of the
State of Gujarat can only be held after the delimitation of the
constituencies
under the Delimitation Act, 1972. Any Legislative Assembly of a State which is
to be composed after 1971 census is to be in accordance with Article 170 of the
Constitution. The expression "Population" in Article 170 means the population
as ascertained at the last preceding census of which the relevant figure have been
published.
[523 BC; 522 EJ
ARGUMEN.TS
Attorney~General :
The provisions of Articles 52, 53 and 77 (1) as well as several oth~r provisions of our Constitution clearly show that without a President the governance
of the country under our Constitution \Vill come to a standstill. The makers of
the Constitution of every country providing for a President consider a definite
term of office for the Pr.~ident to be of primary in1portance and express their
intention accordingly in their constitution. rhe makers of our Constitution have
also done so. The election o( the President before the expiration of the definite
period of term of his office must necessarily also be of primary importance in
order to achieve, the intention of the makers of the Constitution to give the
President a definite period of his term as President.
Thus clause (1) of Article 62 is expressed in peremptory and
inandatory
language to give effect to the intention of the majcers of the Constitution; it
operates independently and is not circumscribed or conditioned by or dependent
on any other provision of the Constitution. Clause (2) of Article 62 makes this
still clearer. The contingencies referred in 65 (1) are the same as those referred
to in 62 (2). Sub-sections (3) and ( 4) of Section 4 of the Presidential and Vice· .
Presidential Elections Act, 1952, enacted in pursuance of powers conferred under
Art. 71(3) point to lhe same conclusion regarding the peremptory and mandatory
character of Art. 62.
Reading proviso (c) to clause (1) of Art. 56 in the context of 56 ( 1) and 62, it becon1es clear that, notwithstanding the expiration of
his term, the President will continue to hold office only for a very brief period
until his successor enters upon his office.
A con1parison of clause (3) 3° of
Article 12 of the Constitution of Eire with Art. 62 of our c·onstitution will also
indicate the peremptory and mandatory character of the latter. Peremptory and
mandatory character of 62(1) is no longer res integra: Narayan Bhaskar Khare
v. The Election Con1mission of Jndfa [1957] S.C.R. 1081.
Article 54 merely lays down the qualifications for membership of the "electo~
ral college'' mentioned therein and, in effect, only specifies the electorate for the
Presidential election. Nominated members have no place in that. Art. 54 may
be read in either of the two ways; one the electoral college denotes the full strength
of the elected members of the Legislatures, if all the elective seats therein had been
SUPREME COURT REPORTS
(1975] l S.C.R. c_i
filled. up at the relevant time or, two, it is to consist of such of the elected members -of the Legislatures as are actually elected members at the relevant time. On
tho first view, it v;·ould almost be impossible to hold the Presidential election, because the full strength of elected members is rarely available at the relevant time.
On the second view. in the context of 71(4) there will be no difficulty in holding
the election at the relevant time. If the first view is accepted, after 1961 Article
71(4) will 'bar any question as to the validity of the election on the plea of existence of any vacancy among the members of the electoral college electing/the
Presidertt. Whichever view of Article 54 be taken, it would not affect the validity of Presidential. election held at a time when the Legislative Assentbly of a
State is not in existence. Art. 71 ( 4) will operate as a bar to questioning the
vaiidity of the election.
The "electoral college'' mentioned in ,Art. 71 ( 4) is the san1e "electoral
college" as in Art. 54. This "electoral colJege" is independent of the Legislatures
mentioned in Article 54, notwithstanding that the elected members of these Legislatures. constitute the "electoral college". The words "any vacancy" in Art. 71
( 4) indic1l.te that the vacancy IQay be of any nature, that is due to any cause,
or may be of any magnitude. The expression "any vacancy for whatever reason"
does not admit of any limitation on its pw:port or scope. The words "for whatever reason" emphasise that the nqture or nlagnitude of the reason for any such
vacancy is immaterial.
The dissolution of Legislative Assembly of a State
would only be a cause resulting in vacancies amopg members of the electoral
college within the meaning of 71(4).
The clear implication of 71 (4) read with Articles 54, 56 (I), 62 (!) and 65
is that the election of President must be held before the expiration of the term
of office of President, as peremptorily laid down in 62(1), or, as the case may, as
soon as possible, and in no case.later than six months from the date of occurrence
of the vacancy due to any of the causes mentioned in 62(2), as also peremptorily
In.id do"'n in that clause.
Article 55 has no more effect than indicating how the votes to be cast at the
Presidential election are to be calculated. This Article lays down that if. the formula laid down therein are applied. uniformity and parity would be secured. If
there should be a vacancy in the "electora1 college" on either of the two interpretations on Article 54, the formuJa laid down in Art. 55 will still be applicab'le
and will be applied and no question regarding the validity of the electioo of the
President for non-compliance with Art.
55 can possibly arise.
SoNcitor-G.eneral
It is fairly clear that the- Electoral College consists of individual metnbeni:
and not of the various legislatures. The usual language in other statutes where
qualifications are prescribed does not occur in Article 54.
This is because in
the other st~tutes after laying down the qualifications a judicial procedure for
determination as to who qualifies becomes necessary.
By the very na(ure of
provisions of Art. 54 a11 that is eliminated.
The provisions of Art 56(1) (c) while enabling the outgoing Pre&i<lent to
continue reiterate that his term nonetheless has expired. Art. 62(1) bin.els itself
\Vith the limit of time within which the election of a successor must take place.
The limit of time is the expiry of the term of the out-going President.
There is no reason to depart from the natural interpretation of the language
of Art. 54. 56 and 62, by any supposed principles to be inferred from ihe socalled federal nature of the Indian Constitution. Although the Pres;ctent is
part of the constitutional machinery. but having regard to functions assigned
to him, namely that of a Constitutional head. always acting according to the
advice of the Central Cabinet, it does not matter to any state as to who occupies
the office of the President nor is there any federal principle violated by permitting the members of the existing legislatures constituting the electoral college to elect the President. The Union Territories have their representation only
through the Members of Parliament. This is no reason why the same principle
should not be applicable for instance, when the Gujarat Assembly is not there,
~11'11 Memltefs of Parliament from Gujarat constituencies are there to re,t>resent
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SPECIAL REFERENCE
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it in the electoral college. The electoral college i.S always duly constituted consisting of the members to answer the description of Art. 54.
Art. 71 ( 4) excludes a _plea based on the contrary interpretation by using the
expression "for whatever reasons" qualifying the vacancy.
Additio1,1al Solicitor General :
In the working of the Constitution the framers clearly contemplated disso-
/!Jtion of Legislative Assemblies and even of the House of the People not only
by expiration of time but even earlier [Articles 172(1) and 174(2) regarding
Legislative Assembhcs; Articles 83 (2) and 85 (2) (b) regarding the House of
the PeopleJ. 11ie framers of the Constitution, therefore. knew that there may
not be in existence an elected House of the People or a Legislative Assembly of
a State at every paint of time in the working of the Constitution. Therefore.
when Article 54 speaks of elected members of the House of the People and
elected members of the Lgislative As.semblies of the States, it onlv prescribes
the composition or strength of the elected college. It does not speCify a.t what
point of time this strength or composition is to be determined.
The words
"consisting of'' do not mean "must at the time of election consist of".
Deliberative assemblies are not incompetent to perform their dutie.i or exer~
cise powers because of vacancies in their membership (FishwiU v. Cleland
C.L.R. 186 (188-89 and 198-99) and Amaya! Achi v. Lakshmi Achi [f945]
F.C.R.
1. If the vacancies resulting in non~representation of an entire State in the
Council of States or the Houses of the People do not affect the constitution of
the Council of States or the House of the People or its power to carry on its
functions, it fa difficult to understand how the absence or representation of an
entire State in the electoral college makes a difference in the composition or
functioning of the electoral college.
.
Article 62(1) deals with periodical vacancies and Article 62 (2) deals with
casual vacancies.
Reading articles 54 and 62 together it becomes clear that
before the end of the periodical vacancy or within six months of the occurrence
of the casual vacancy the new President must be elected-from amongst the
n1embers of the ~lectoral college mentioned in Art. 54.
Article 55 relates to the mode of calculation of votes and guarante<-s that
the elections will b~ held and must be held in the time schedule prescribed in
,.\rt. 62. The mode of computation of votes on the basis of total str~ngth has
been followed by the Election Commission, ever since the first Presidential
election in 1952.
If any doubt remained with regard to the composition of the electoral col~
lege, that doubt stood resolved by Art. 71 ( 4). The words "any varancy" in
this article would also include vacancy arising by reason of compulsion of tawnarnely, dissolution. The words "for whatever reason" put the matter beyond
doubt.
Article 71 ( 4) is based on two pre-suppositions; ( 1) that Art. 54 deah
with the total strength of the· electoral college but not the time of o.:lection
and (2) that Art. 62 deals with the time of election and the election must be
held at the time there mentioned irrespective of whether or not the total .'trength
factually exists at that time.
The speeches made in the Parlian1ent during the Constitution (Eleventh
Amendment) Bill disclose that the contingency that has now arisen, na~ely. a
State of the Union being unrepresented through members of its Legislative
Assembly consequent upon dissolution was contemplated and provided for in
Art. 7 (4).
Article 56( 1) ( c) does not contemplate any possible "successor" but only a
successor who has been elected-that is the President-elect. This 1s clear fron1
H
the words "until his successor enters uoon his office."
Death is a contingency contemolated under sec. 7 of the Presidentta1 and
Vice-Presidential Elections Act 1952 would have to be worked out within the
time schedule fixed _in article 62(1) of the Constitution read with sec. 4(1) of
510
SUPREME COURT REPORTS
[1975) 1 s.c.R.
the Act, and if necessary by amending sec. 4( 1) of the Act to meet 1he con·
A
tinge_ncy of death occurring at a date very near the date of expiry of the ternt
of office _Jf outgoing President.
The notification under sec. 8 of the Delimination Act 1972 having alre'ady
been published under sec. 10 of that Act prior to the date of dissolution of the
Gujarat Legislative Assembly, the constituencies have to be delimited so as to
accommodate 182 seats in the place of 168 seats.
Bihar :
B
Except in cases specifically provided for under clause (2) of Art. 62 thi~
article requires that the election to fill the vacancy 3.t the expiration of the
period of 5 years from the date on which the President entered upon his office,
shall be completed before the exptration of the term.
This mandate of the
framers of the Constitution is not qualified by the Proviso to Art. 56. In fact,
Article 62 peremptorily and in absolute terms enjoins that election be held in
the natural course before the expiration of the term; and even iii unforeseen
C
circumstances "not later than 6 months from the date of the occurrence of the
vacancy."
Though Art. 71 ( 4) does not envisage a contingency where a State Legislature
has been dissolved, the words of Art. 62 have an inexorable
force.
There
can be no difficulty in applying the formula contained in Art. 55 and working
out the scale of representation in spite of the dissolution of Legislati\'e As~embly
of a State.
Manipur:
Art. 62(1) is mandatory and the election to elect a new President to the
vacancy is to be completed before the expiration of the term o.l office of the
President Irrespective of the dissolution of the Legislative Assembly or Assem~
hlies of a State or States. The elected members of both Houses of Parliament
can represent the people of State whose legislative assembly has been dissolved.
Art. 71(4) is also intended to cover the vacancy caused by the dis<ioluti<'n of a
Legislative Assembly.
·Tamil Nadu :
On a true and correct sense of the interpretation of Articles 54, 55, 56, 62
and 71, the electoral college need consist only of thi;, elected members of such
assemblies as are in existence at the time of expiration of the period of office of
the outgoing President.
Dissolution of a Legislative Assemblv will amount to
"vacancy" in electoral college within the meaning of Art. 71(4). It follows,
D
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therefore, that the election of the President must be held before the expiration
F
of the term of the outgoing President notwithstanding the fact that at the time
of such election the Legislative Assembly of a State is dissolved.
On a correct interpretation of the relevant articles of the Constitution, Art.
71 ( 4) cannot include within its scope "vacancies" by reason of dissolution of
Assemblies or the House of People made mala fide or in colourable exercise of
power or with an ulterior purpose.
Further, if the House of the People or
majority-of the Assen1blies is dissolved and re·election to the House or Assembly
is deliberately not conducted within a specified period, the election of the
President should not take place.
Ordinarily, election to the dissolved House or
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Assemblies should be completed within reasonable time before the expiry of
the term of the outgoing President. Art. 62(1) should be construed as subject
to the implied limitation that if election to the dissolved assembly or the House
of People is not held within a specified period except for a sufficient cause, the
election to the office of the President should not take place.
The question
whether there is sufficient cause or not for not holding the election is for the
Supreme Court to decide.
Bharatiya Jana Sangh :
Ii
Under Article 143(1) of the Constitution it is not obligatory for the Supreme
Court to give opinion. It tnay in certain cases decline to express opinion under
its advisory jurisdiction.
As this Reference has not been made by reason of
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511
any bona-fide doubt existing in the mind of Govt. but with a view to trying to
secure judicial approval for a course of political action Govt. has already decided
on, the Supreme Court should decline to express any opinion on this Reference
unless :
(a) The Govt. agrees to modify the Terms of Reference so as to cover the
two important aspects, namely, (1) inclusion of Art. 170 and also the Delimination Act and (ii) inclusion of the question as to whether the election would
be valid if the Govt. by its own acts of omission or commission, denies to the
representatives of Gujarat an opportunity of participating in the elections;
and
(b) Government unreservedly commits itself to abiding by Supreme Court's
opinion.
The "electoral college" mentioned in
Article 54 does not consist only of
the elected members of such Legislative Assemblies as are in existence at the time
of the holding of Presidential election b_ut consists of elected members of all the
State Legislative Assemblies, and of the two House of Parliament, and if any
one of the Assemblies is not in existence. the electoral college is incomplete.
When the Legislative Assen1bly of any State is dissolved, it will not amount to
"any vacancy" in the electoral college within the meaning of Article 71(4)
The functioning of the Constitution is predicated upon the existence of and not
on the absence of the Legislatures. This is evident from Articles 79 and 168.
Art. 55(2) is so designed as to maintain parity between the States as
a
whole and the Union, and uniformity amongst States inter se. There is a purpose behind this.
That purpose is to maintain the neutral character of the
President as between the Centre and the States, and the States inter se.
lf the election to the office of the President be held in the absence of the
Legislative Assembly in one or more States, the federal structure of the Constitution would be undermined and the people of the States who have not participated in the election Of the President might develop a doubt that they may
not get justice from the President in their disputes with the Union or States
which participated in the election.
Immediate holding of elections after dissolution of the State Legislative
Assembly or the Lok Sabha is mandatory and the provisions of Art. 170 and
of the Delimitation Act of 1972 should be interpreted as directory in order
to harmonise these provisions with the provisions of Articles 54. 56, 62, 79 a·nd
168 of the Constitution.
The election to the office of President cannot be vaHdly held, :when at the
time of such election the Legislative Assembly of any State is dissolved.
To
hold the election in the absence of a Legislative Assembly will directly violate
the provisions of Articles 54, 55, 79 and 168 of the Constitution.
The President can continue to hold the office
under
56( 1) ( c)
notwith~'
standing the expiration of the term. But a healthy convention will be to abide
by the directory provision given in Art. 62(1) and to hold the election during
the term of the President.
Indian National Congress (0)
The members of Electoral College are not
specifically elected for
the
Pllt:PDSe of voting in Presidential Election. The parity between the States and
the Centre provided for in Art. 55 cannot be possibly achieved if one or more
States remain totally unrepresented. Art. 71 ( 4) is intended to cover an altogether different situation. The vacan:y in the electoral college can only mean
that certain seats in an assembly may be vacant but not that the whole House
is absent on account of its dissolution.
A harmonious construction of the relevant provisions of the Constitution will
reveal that if any State Assembly is not in existence a fresh election to the
State Assembly should be held before lhe election to the office of the President.
Indian Musfin1 League:
The "electoral college'' spoken of in Article 54 consists of both the Houses
of Parliament as well as of all the State Assemblies.
It is not legal to hold
512
SUPREME COURT REPORTS
[1975] l s.c.R.
-election if one or more State Assemblies are not in existence at or before the
expiration -of the term of office of the President. Otherwise the uniformity in
the sca1e of representation of the different States at the election of the President
cannot be maintained. The parity between the States as a whole and the Union
wiU also be destroyed. The dissolution of a Legislative Assembly amounts to
non·eXistence of a constituent unit of the electoral college. It is not a casual
vacancy contemplated in Art. 71 ( 4).
Though ordinarily the President's election must be completed before the
expiration of the term, the aid of Art, 62 cannot be so taken as to affect the
ba~ic provision in Art. 54 regarding the composition of the electoral college.
The proviso to Art. 56(1){c) enables the President to continue in offiee ev~n
after the expiry of his term.
There is no provision that the election of the
Preslident cannot be postponed for a very short and reasonable period. No
election can be held in the absence of complete electoral co11ege. The elections
to the State Assembly can be completed without any unreasonable delay and
Preiidential election h-'ld thereafter.
Socialist Party :
The President can continue in office beyond his tern1 of office. but not beyond
six ·months from the date on which vacancy occurs. However. even without the
President or the
Vice~President, there can be no constitutional vacuum for
the ·office of the President because the Chief Justice or the senior n1ost judge
of the Supreme Court can officiate ils a President of India under President
(Discharge of Functions) Act 1969.
_The vacancy spoken of in Art. 71(4) fs only a casual vacancy. Vacancies
caused by the non~existence of any State Legislative Assembly or even of
Lok Sabha in future would disturb the uniformity in the scale of represenH1.tion
of different states as well as parity between the states as a whole and
the
Union. Holding of election to the office of ~he President in the absenc~ of a
Legislative Assembly will clearly violate Art. 55. Not only that. It will also
amount to destruction of the Federal structure and also the basic princil:>le of
republicanism, namely, equality of States in the Union to take part in the
Presidential Election.
ADVISORY JURISDICTION : Special
Reference
No. 1 of
1974.
(Reference under Article !43 of the Constitution of India.)
Niren De, Attorney General of India, Lal Narain Sinha, Sol. General of India and R. N. Sachthey, for Attorney General of India.
F. S. Nariman,. Addi. Solicitor General of India, S. P. Nayar and
Girish Chandra, for Election Commission.
La! Narain Sinha, Solicitor General of India, and M. N. Shroff,
for Advocate General for the State of Maharashtra.
S. Govind Swaminathan, G. Ramaswamy and A. Subhashini for
Tamil Nadu Balbhadra Prasad Singh and U. P. Singh for Bihar.
M. Veerappa for Karnataka.
R. P. Kapoor, for Madhya Pradesh.
M. N. Abdul Khader and K. R. Nanibiyar for Kerala.
N. Ibotambi Singh and R. N.. Sachthey for Manipur.
S. N. Kachker and 0. P. Rana for Uttar Pradesh.
L. M. Singhvi, U. P. Singh and S. M. Jain for Rajasthan.
For the App/icants/Jnterveners: Rajinder Lal Kohli, S. K. Bagga,
S. Bagga, Salish Kohli and Yash Bagga, for P. S. Walace.
C, L. Lakhanpal, S. K. Mehta, K. R. Nagaraja, M. Qamaruddin,
Vinod Dhawan and V. Mayakrishnan, for Indian National Congress
(0).
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SPECIAL REFERENCE (Ray, C.J.)
Santoklt Singh and N. R. Chaudhry, for Socialist Party.
Bashir Ahmed, Shakeel Ahmed and K. L. Hathi for Indian Union
Muslim League.
L. K. Advani, President, Bhartiya Jana Sangh, appeared in person
for Bhartiya Jana Sangh.
M. M. Bajaj and Harinder Singh Khera appeared in persons.
The Judgment of the Court was delivered by
RAY, C.J.-This Reference has been made by the President undec
Article 143(1) of the Constitution of India for the opinion of this
Court on certain questions of constitutional importance bearing upon ·
the election to fill the vacancy on the expiry of the term of office of
the President on 24th August, 1974.
The Reference turns on the principal question as to whether the election to fill the vacancy caused on the expiry of the term of office of the
President must be completed before the expiry of the term of office notwithstanding the fact that the Legislative Assembly of the State of Gujarat
is dissolved.
Article 52 states that there shall be a President of India. Article
5 6 ( 1) states that the President shall hold office for a term of five years
from the date on which he enters upon his office. Article 60 states that
every President before entering upon his office shall make and subscribe an oath or affirmation as mentioned therein. Article 63 (1) states
that an election to fill a vacancy caused by the expiration of the term of
the office of President shall be completed before the expiration of the
term. Article 56(1) (c) states that the President shall, notwithstanding
the expiration of his term, continue to hold office until his successor enters upon his office.
The fixed term of office mentioned in Article 56 ( 1) as wiIJ as the
mandate in Article 62( !) that the election to fill a vacancy caused by the
expiration of the term of office shall be completed before the expiration
of the term reflects the dominant constitutional purpose and intent regarding the time when the election of the President is to be held. Further, the provision in Article 62(2) that an election to fill a vacancy in
the office of the President by reason of his death, resignation or removal
or otherwise be held as soon as possible after and in no case later than
six months from the date of the occurrence of the vacancy shows that
the time to hold an election to fill a vacancy is also mandatory in
character.
G
The completion of election before the expiration of the term in the
case of vacancy cansed by the expiry of the term as well as filling the
vacancy by holding an election not later than six months from the date
of the occurrence of the vacancy in the other case does not contain any
provision for extension of time. By way of contrast reference may be
made to Article 83 where it is said that though the expiration of the
period of five years shall operate as a dissolution of the house the period
H
may, while a Proclamation of Emergency is in operation, be extended by
Parliament by Jaw for a period not exceeding one year at a time and not
extending in any case beyond a period of six months after the Proclamation has ceased to operate.
SUPREME COURT REPORTS
[1975] 1 s.c.R.
.The inmrveners sugges.ted. that the word "otherwise" occurring in
Article 62(2) of the Consl!tut1on contemplates a case of filling a vacancy
occurring by the expiration of the term but where such vacancy cannot
.be filled up by completing the election before the expiration of the term
·by reason of dissolution of the Assembly.